However, Johannesburg High Court Judge Seun Moshidi will review the matter throughout the trial and give a final ruling at the end.
Judge Moshidi last week ruled that a trial within a trial be held after Sfiso Mhlanga, Ludwe Gxowa and Mbuti Mabe told their lawyers that the man they are alleged to have hijacked, Sphiwe Mlaba, might have seen them before he identified them.
Mlaba on Tuesday said his statement was different from what he said in court because when he made the statement he did not know that he would be required to be in court and explain every thing mentioned in it.
In his statement, Mlaba said Mhlanga – who he said pointed a gun at him – was dark in complexion.
However, Mhlanga’s lawyer, Advocate Vuyo Jack, asked him to look at his client and see his complexion. Mlaba admitted that indeed Mhlanga was light-skinned.
But all three men claimed not to have been at the crime scene when Mlaba was allegedly hijacked.
Mhlanga claims to have been at Maponya Mall at around 8pm before going to a nightclub.
"He will have to prove it to the court and bring evidence. What I am saying is that he was the one who robbed me," Mlaba said.
Mbuti claimed that when Mlaba was robbed he was asleep at a friend’s place as his leg was injured. He then went to a nightclub and was there until the early hours of the morning. Gxowa said he was nowhere near the scene of the hijacking that night as he was at his place.
The trial continues.
Meanwhile a witness testifying in the Lucky Dube murder trial contradicted a previous statement given to police, the Johannesburg High Court heard on Wednesday.
Siphiwe Mlaba, allegedly hijacked by the three men accused of Dube’s murder, acknowledged that there was a difference between his statement given to police and his testimony in court.
When cross-examined about this by the defence, Mlaba said: "I did not know I would be required to repeat exactly what I said in the statement."
He acknowledged there were some facts he had told the court that he had not included in his statement.
Defence for the accused said Mlaba had fabricated evidence to suit himself.
His police statement was, therefore, presented to the court as an exhibit.
Mlaba had pointed out the three accused — Julius Gxowa, Mbuti Mabe and Sifiso Mhlanga — at an identity parade on October 29 2007.
This was after he was hijacked of his Mercedes Benz C Class.
During the hijacking, Mlaba said he saw the three men approach him while he was waiting for a friend on Jules Street in Johannesburg.
When describing Mhlanga, who allegedly pointed a gun at his chest, he said the man was "short and dark".
He said the other two accused, Gxowa and Mabe, got into the car while accused Mhlanga opened the door and grabbed him.
"I could see all of them because accused number one [Mhlanga] was the one talking to me. I was also able to see the two others in the car, because the interior lights of the car switch on when the doors are open," said Mlaba.
Earlier on Wednesday morning, the court ruled that the evidence of the identity parade was admissible.
Judge Seun Moshidi said that he would explain this decision at the end of the trial when assessing the overall merits of the trial.
Gxowa, Mabe and Mhlanga, all in their thirties, are on trial for allegedly killing Dube outside his brother’s house in Rosettenville, south of Johannesburg, on October 18 2007.
They face a charge of murder, two charges of aggravated robbery, one count of attempted aggravated robbery, and two counts of the illegal possession of a firearm and ammunition.
The trial continues on Thursday. — Sapa